Defendant’s Right to Self-Representation

Indiana v. Edwards, 128 S.Ct. 2379 (2008)

A defendant who is mentally competent to go to trial is not, ipso facto, entitled to represent himself. A trial court may find that the defendant is competent to go to trial, but not mentally equipped to represent himself.

United States v. Hung Thien Ly, 646 F.3d 1307 (11th Cir. 2011)

The defendant represented himself at trial. The judge asked him if he wanted to testify. The defendant expressed concern that he would not a lawyer to ask him questions, and he would have to submit to cross-examination without having the opportunity to present his testimony. The judge kept asking him, “Do you want to testify, or not?” without explaining that he would, in fact, have the opportunity to present his own sworn testimony. This was reversible error. Though a judge has no obligation to explain the law to a defendant who is representing himself, the judge is required to correct a misimpression as in this case.

United States v. Duncan, 643 F.3d 1242 (9th Cir. 2011)

In this federal death penalty trial, the defendant insisted on representing himself. The Ninth Circuit held that even over the defendant’s objection, standby counsel has the right to assert that the defendant was not competent to waive his right to counsel, or to waive his right to appeal.

Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008)

Mid-trial, the defendant asked to be permitted to represent himself, because counsel wasn’t asking all the right questions. At a brief sidebar, the state judge said that request was not sufficiently clear and ignored it. The Sixth Circuit granted the writ, holding that the court should have conducted a full Faretta hearing. This was structural error that required granting a writ of habeas corpus.

United States v. Cano, 519 F.3d 512 (5th Cir. 2008)

A defendant has a constitutional right to represent himself at sentencing, even if he appeared with counsel at trial. Failing to conduct a hearing pursuant to Faretta v.California, 422 U.S. 806 (1975), to determine if the defendant should be permitted to represent himself on appeal was error, requiring a remand for re-sentencing after an adequate Faretta inquiry is conducted.

Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008)

The en banc Ninth Circuit discusses the role of stand-by counsel in a case in which a defendant exercises his Faretta right to represent himself. See McKaskle v. Wiggins, 465 U.S. 168 (1984). The court concluded, tentatively, that an in-chambers conference about what to do about a jury note – a conference attended by stand-by counsel, but without the defendant – may have violated his right to represent himself. The decision is tentative because a remand was necessary to more fully develop the record about what actually occurred prior to the in-chambers conference.

United States v. Tucker, 451 F.3d 1176 (10th Cir. 2006)

The trial court erred in barring the defendant from representing himself during voir dire. The defendant did not request a delay or a continuance when he requested that his attorney be discharged and that he be permitted to proceed pro se. Therefore, the trial court’s explanation for why his request to proceed pro se would be denied (i.e., the court held that further delay of trial was not proper) did not support the trial court’s decision. The fact that the trial court eventually relented and permitted the defendant to represent himself did cure the error in barring the defendant from representing himself during voir dire.

United States v. Virgil, 444 F.3d 447 (5th Cir. 2006)

The defendant has a right to counsel at the sentencing phase of his trial. In this case, the defendant fired his trial counsel and opted to proceed pro se, but the trial court conducted an inadequate Faretta inquiry. Faretta v. California, 422 U.S. 806 (1975). A Faretta violation at trial is not subject to harmless error analysis; nor is a Faretta violation at the sentencing phase subject to harmless error review.

Pazden v. Maurer, 424 F.3d 303 (3d Cir. 2005)

In a complicated white collar prosecution, counsel requested a continuance in order to prepare. This request was denied and the defendant then announced that he would represent himself, because the attorney could not be ready. The defendant did, in fact, proceed pro se and the Third Circuit held that this amounted to a violation of his sixth amendment right to counsel. The defendant’s waiver of his right to counsel was not the product of a free and meaningful choice.

United States v. Jones, 421 F.3d 359 (5th Cir. 2005)

The trial court failed to undertake the proper Faretta dialogue with the defendant. Allowing him to proceed pro se was error.

Hirschfield v. Payne, 420 F.3d 922 (9th Cir. 2005)

The state trial court erred in denying the defendant’s request to represent himself.

Jones v. Jamrog, 414 F.3d 585 (6th Cir. 2005)

The defendant asked to be permitted to represent himself, because certain discovery material was being furnished to his lawyer, but copies were not being furnished to him. The state had a policy that provided that certain discovery would only be provided to the defense attorney with the agreement that the material would remain in the attorney’s custody. The trial court concluded that the defendant’s request was not “voluntary” because it was predicated on his desire to obtain copies of the discovery, not an honest request to dispense with counsel. The Sixth Circuit concluded that the trial court’s decision violated Faretta.

United States v. Mack, 362 F.3d 597 (9th Cir. 2004)

The defendant was permitted to represent himself, but was obstreperous, disobedient and otherwise impossible. The district court simply ordered him to keep quiet, barred him from calling witnesses or making a closing argument. His conviction could not be affirmed. Either counsel should have been appointed (and perhaps removing the defendant from the courtroom), or some other remedy should have been fashioned.

Van Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003)

The state trial court’s refusal to allow the defendant to represent herself because she lacked the ability to present her defense in “an informed, reasonable or intelligent manner” violated Faretta and required granting a writ of habeas corpus.

Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994)

A criminal defendant must make a timely and unequivocal request to proceed pro se in order to ensure the orderly administration of justice and prevent the disruption of both the pre-trial proceedings and a criminal trial. Assuming, however, that a defendant’s request to proceed pro se is informed, voluntary and unequivocal, the right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. The trial court’s reasons for denying the request – the defendant’s lack of legal training, college education and skills or on-the-job training – furnish no basis to refuse a knowing, voluntary and unequivocal waiver of one’s right to counsel. The defendant’s conviction was set aside because of the denial of his constitutional right to self-representation.

Myers v. Johnson, 76 F.3d 1330 (5th Cir. 1996)

A defendant has a constitutional right to represent himself on appeal, at least to the extent of choosing what issues to raise and the preparation of the brief. A defendant does not have a constitutional right to argue his appeal in court, however.

Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997)

A defendant’s request two weeks before trial for the right to represent himself was not untimely and the denial of that request provided grounds for granting habeas relief.

Peters v. Gunn, 33 F.3d 1190 (9th Cir. 1994)

The trial court denied the defendant the right to represent himself. A defendant has a Sixth Amendment right to represent himself. Faretta v. California, 422 U.S. 806 (1975). In order to invoke the right, the request must be knowing and intelligent, unequivocal, timely, and not for purposes of delay. The trial court’s reason for denying the defendant’s request in this case was a finding that, “It does not appear to me as if you have the capacity to represent yourself . . .” It was not clear what the judge meant by this. The defendant was apparently able to read and a defendant’s lack of legal qualifications cannot be a bar to a request to represent himself.

United States v. Baker, 84 F.3d 1263 (10th Cir. 1996)

The trial court denied the defendant his right to represent himself. In order for the defendant to invoke his right, he must clearly and unequivocally assert his intention to represent himself. Second, this assertion must be timely. Finally, there must be a showing that he knowingly and intelligently relinquishes the benefits of representation by counsel. The key question is whether the defendant is competent to waive his or her right to counsel, not whether the defendant possesses legal knowledge or is otherwise competent to represent him or herself. In this case, the defendant satisfied all three tests and the trial court’s reason for denying his request was a fear that the defendant did not have enough legal knowledge. This was an improper basis. The court noted that there is no harmless error analysis that can be undertaken in this context. Either the defendant was denied his right, or he was not.

United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995)

When a defendant requests the right to represent himself and standby counsel is appointed to assist him, it is error to exclude the defendant from bench conferences where substantive issues are addressed.

United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995)

With unmistakable clarity, the defendant requested an opportunity to represent himself. In assessing the defendant’s competence to represent himself, the court should only be concerned with the defendant’s competence to waive his right to counsel, not his competence to represent himself. Godinez v. Moran, 509 U.S. 389 (1993). That is, the defendant’s legal prowess is not a factor in gauging his right to self-representation.